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In appreciation of your patronage, your kind e-mails, and even the angry applicant and lien-claimant messages, WCDefenseCA is working on something very special to be revealed next week… We’ll see you Monday!

Workers’ compensation is not a catch-all. It is not meant to correct every ill or misfortune or unpleasant reality of life. Workers’ compensation is limited to the effects of industrial injuries.

Now that we have that news-flash out of the way, allow me to relate to you, my dear readers, the recently writ denied case of Alemnesh Haile v. Fair Oaks Estates. Haile worked as a patient caregiver, but then injured her right shoulder. She was returned to work after her employer was able to find a job for her within her work restrictions.

Unfortunately, Haile’s father fell ill and she purchased a plane ticket to visit him in Ethiopia. Compounding her misfortunes, her employer did not approve her requested leave of absence for the duration of the trip. Therefore, on what everyone knew would be her last day, she picked up her final paycheck, and flew to Ethiopia to be with her father.

The evidence seemed incontestable that her loss of employment was solely due to job abandonment, and had she shown up on her next assigned day, she would have still had a job.

At this point, it may be appropriate to repeat: workers’ compensation is not a panacea.

Applicant claimed temporary disability benefits, even though she had abandoned her job and a job within her medically-imposed work restrictions was available before she left.

Well, fortunately, the workers’ compensation Judge, the Workers’ Compensation Appeals Board and the Court of Appeal were little moved by applicant’s claim. The WCJ rejected applicant’s statement of the rule that “anything less than willful misconduct should not deprive an injured worker of temporary disability benefits,” noting that adopting such a rule “would force the WCAB to (improperly) interfere with legitimate exercise of managerial discretion.”

For more on job abandonment as a shield to temporary disability benefits, see the panel decision in the case of Wilbert Lee v. Coca-Cola Bottling Co. (2009) (“since the applicant refused modified work, and the defendant testified at trial that it offered – and would have continued to offer – modified work within his restrictions, the applicant is not entitled to temporary disability indemnity”).

We’re all sympathetic to applicant, but neither the employer nor its insurer should have to pay for such trips – if you turn down available work, you’re not entitled to temporary disability benefits.

It was only thanks to the diligence of the employer, who regularly photographed Ramirez’s company truck and active lifestyle that the District Attorney’s office was able to make a case.

Currently, the matter is set for a preliminary hearing.

This sets a good example for adjusters and defense attorneys as well. Whether you are defending a case for the biggest employer in all the land, or the smallest mom-and-pop shop, the best resource for catching fraudsters is the supervisor, employer, and co-worker.

Gossips, rumors, hearsay… all of these things tend to be inadmissible at the Board, but they are enough to justify an investigation, sub rosa, and a line of questioning at a deposition.

The employer has every incentive to have a fraudulent workers’ compensation claim discovered and treated as such, sparing the business budget an unnecessary increase in workers’ compensation insurance premiums.

Even as we on the defense side, attorney and adjuster alike, face crowded desks, bursting filing cabinets, and a clock that is snugly in a vice with every last second being squeezed out of it, there is still good reason to take the time and have a conversation with the employer – What do you know? What do you hear? Is this guy for real? You think he’s really hurt? Is he working somewhere else?

As always, WCDefenseCA wishes good hunting to the deputy DA on the case… but an especially fond thumbs up to the small business owners who did the leg work in catching this fraudster in the act.

If someone told me that the defendant in a workers’ compensation case was a Jaguar/Landrover dealership, I would expect a pretty awesome story leading up to an injury more to the soul at seeing a beautiful cars damaged rather than any physical impairment. It should include a high-speed chase, tuxedoes, martinis (shaken, not stirred), and some sort of threat to world peace. Or, as we in the Bay Area like to call it, “Thursday.” Well, if your mind works the way that your humble blogger’s does, you’ve got bigger problems than a boring blog post to read.

In the case of Richard Anderson v. Jaguar/Landrover of Ventura, sadly there were none of the things one hopes for. Instead, applicant sustained an admitted injury to his shoulder while working as a mechanic (no, not while fixing a car mid-air). Unfortunately, applicant sustained a stroke, leading defendant to offer to stipulate to a total loss of future earning capacity. However, defendant also argued that at least some of this new Total Permanent Disability should be apportioned to diabetes and other pre-existing factors, as articulated by the panel qualified medical evaluator, who apportioned 40% of applicant’s impairment to non-industrial factors.

The Workers’ Compensation Appeals Board actually rejected the PQMEs apportionment reasoning. Because the PQME apportioned 40% causation to the cause of the injury, to wit, the stroke, instead of the percentage of impairment, the apportionment opinion was not substantial evidence. Because no portion of the disability was apportioned to non-industrial or prior industrial causes, applicant was deemed TPD.

The panel then changed to a more interesting question – that of COLA (Cost Of Living Adjustment) and SAWW (State Average Weekly Wages). Life pensions awarded after January 1, 2003, are to be increased by the same rate as the increase in the state average weekly wage to reflect an increase in the cost of living. (See Labor Code section 4659(c)). Well, if applicant was to receive 2/3rd of his income at the time of his injury for the rest of his life, how is applicant’s attorney’s fee to be calculated?

The WCAB recognized that future SAWW increases are not known, and that expecting bountiful years cheats the applicant by giving too much to the attorney; expecting lean years cheats the applicant’s attorney should the years be not as lean as the pessimists expect. What is one to do in such a situation?

Your humble blogger’s various protests to compelled commutation aside, the WCAB rejected the DEU’s use of the average SAWW increases for the previous 50 years, instead opting to go with a 3% figure to reflect concerns of coming economic troubles. As the WCAB put it, “a 3% factor places more of the economic risk of hyperinflation upon the attorney, instead of upon the injured worker.”

This does make sense, given the fact that applicant’s award is based on the fact that he will never be able to earn an income again, whereas the attorney is likely able to earn a dollar or two in the years yet to come.

So, if you’re getting ready to settle a case, perhaps it won’t be too unreasonable to push for a 3% COLA increase in calculating applicant’s attorney fees.

The San Francisco Examiner reports that the Board of Directors for BART, the Bay Area Rapid Transit, has approved almost 9 million dollars to help pay for some 800 open workers’ compensation claims, citing increases in medical treatment costs and the growing trend of some employees padding their retirement with comp benefits.

According to the article, the directors were taken by surprise, having had no idea of the growing hole in BART’s workers’ comp program. Some problems, it appears, do not magically disappear from want of attention.

One director was quoted as saying “I sure would like to have a better understanding of what we’re doing. It seems like we’re funding a liability that should have been corrected.”

Just to put this in context, the BART directors also approved one million dollars for “pigeon abatement projects.” So, for every nine dollars to be spent on workers’ compensation, one is to be spent on abating pigeons.

In any case, dear readers, it looks like, inch by inch, workers’ compensation is creeping into center stage as one of the growing ills facing California entities, whether public or private. We must all be vigilant, lest we end up spending our board meetings discussing how much of a “surplus” should be spent on plugging holes in the workers’ compensation budget.

For my dear readers in the Bay Area, especially those familiar with BART, it must come as a particular bit of confusion that BART should experience a surplus. Perhaps this “surplus” could be used to keep trains from breaking down in the tunnel between Oakland and San Francisco; to operate a proper ventilation system on hot days; or to have trains that don’t go out of service because someone’s backpack was caught in closing doors. But take care of the pigeons first…

It appears that the delay in signing Senate Bill 863, rumored to be caused by Capitol’s frantic shortage of pens, is no more. The Mercury News reports that Governor Brown signed the bill yesterday while in San Diego.

This move has been repeatedly cheered by business owners and union representatives alike. Some groups have complained, however, saying that the reforms will hinder their platform of “keeping the working man from working.”

It goes without saying, dear readers, that we should all be brushing up on our SB-863 reading, and getting ready to handle new claims as they arise in 2013.

The tools are on the table, let’s roll up our sleeves and see what we can build.

The Los Angeles County District Attorney’s Office recently announced the conviction of Emmett Timothy Kennedy III, a southern California business owner who pleaded no contest to three felony counts, including insurance fraud. He has now paid the full restitution amount of $321,350.00. Mr. Kennedy was undone when one of his employees in a window-washing business complained to the Maintenance Cooperation Trust Fund that he and other employees were only being paid in cash.

This is another example of the underground economy – and in such a dangerous industry too! Can you imagine what would have happened if one of the window-washers would have fallen off, especially with no insurance to cover the loss and assist the employee’s family?

Your humble blogger has commented on this several times – it’s not worth it! Buy the insurance!

However, that being said, it’s important to remember that there is also plenty of workers’ compensation fraud from the employee side. Your humble blogger looks forward to seeing the Los Angeles District Attorney’s office show its zeal and commitment to prosecuting employee-transgressors as well.

By now we’re all familiar with the going and coming rule, and also its exception of the “commercial traveler.” A commercial traveler is one that is on a trip for business purposes (think conferences, special projects, recruiting events) and is thereby taken away from hearth and home, sometimes for days at a time. When an employee is a commercial traveler (not to be confused with a Travelers commercial) it is generally considered that he or she is always on the clock, and therefore the going and coming rule does not apply.

Enter the case of Antonio Parvool v. Tony’s Food Service (coincidentally insured by Travelers). Mr. Parvool, the poor, unfortunate man, had the difficult job of going to Hawaii to assist in providing catering services to movie production crews. While he was not handing out whole-wheat extra-thin bagels to movie stars, he got to enjoy the surrounding area, including the employer-provided hotel and swimming pool.

Despite your humble blogger’s valiant efforts, workers’ compensation Judges in California are reluctant to grant change-of-venue motions to Hawaii – some nonsense about state jurisdiction. Rest assured, when your humble blogger is finally in charge, workers’ compensation trials will be held on the beaches of Hawaii in casual attire, and applicants will immediately realize there is more to life than hounding an employer over a paper cut. Objections will be made with Mai-Tai in hand, and all permanent disability indemnity will be paid in macadamia nuts. Someday…

Having spent too much time around action movie stars and their stunt doubles, applicant decided to dive head-first into the shallow portion of the hotel swimming pool, and sustained injuries to his neck, upper extremities, lower extremities, psyche, and digestive system. Defendant pointed out that applicant wasn’t on the clock when he took his dive, but applicant’s counsel responded by pointing out that the commercial traveler rule applied.

Persuaded by defendant’s arguments, the workers’ compensation Judge held that Labor Code section 3600(a)(9) rendered this injury non-industrial, as applicant’s injury arose “out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties.”

Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration and, having rubbed the lamp in just the right way, the applicant’s wish was granted. The WCAB reasoned that section 3600(a)(9) does not apply to the commercial traveler exception, but rather to routine injuries. So, if a hotel worker were to take a lunch break and go for a swim in the hotel pool, sustaining the exact same injury as the unfortunate Mr. Pavool, the injury would not be compensable under section 3600(a)(9).

Ms. Virgil and her employer’s insurance company were locked in a battle of wills and began the ritual with which we are all far too familiar – requesting a panel. The panel was issued, and defendant struck one name from the panel. While applicant considered the other two names, she discovered that one of the QMEs could not provide an appointment within 60 days.

That being the case, applicant wrote to the medical director requesting a new panel under California Code of Regulations section 31.5(a)(2). What’s that you ask? Did applicant bother to strike a name from the panel? No – after all, what was the point when applicant was entitled to a new panel.

Well, when applicant failed to strike a name from the panel, defendant chose the QME that applicant didn’t want, and scheduled an appointment for her. When the matter was brought before the workers’ compensation Judge, the Judge ruled that even though applicant attempted to schedule an appointment with one of the QMEs, Labor Code section 4062.2 requires that applicant perform a “strike” and communicate that strike to opposing counsel.

Therefore, the WCJ issued an order instructing applicant to attend the appointment set by defendant for a QME evaluation.

Now, the caption on the panel decision reads “Opinion and Order Granting Petition for Removal.” But, as the opinion states, the panel of commissioners “grant the petition only for the purpose of deleting the date of the appointment with [defendant’s selected QME], which has now passed.” (Emphasis added.)

What do you think, dear readers? If the defendant has already communicated its strike, should applicant still have to make a strike of his or her own? Or can the strike be made by implication in scheduling an appointment with one of the two remaining QMEs on the panel?

Now, your humble blogger does not know Judge Moran personally, and can only speculate as to the reasons behind this resignation. But it says something about our system if a seasoned attorney and veteran judge has had enough after just over one year. Whether reforming workers’ compensation, or handling the demands of politicians, or the mixture of the two did it, doesn’t really matter – something’s got to change.

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The content of this web log is for information purposes only and should not be construed as legal advice. No attorney-client relationship is formed by this site. If you would like to speak to a workers' compensation defense attorney, please contact Gregory Grinberg at 650-235-4008.